Tag: Law

Slip and Fall Personal Injuries Part Three

Current Law

In 2009, American Multi-Cinema, Inc. et al. v. Brown et al., the Supreme Court reaffirmed Robinson. Taking note of Robinson’s admonition that “routine” issues of premises liability are not subject to summary adjudication unless plain, palpable, and undisputed evidenced shows otherwise,” the Court affirmed the lower court’s finding that the trial court erred in granting summary judgment to the defendant. 285 Ga. 442, 445, 448.

The decision whether to recognize the [invitees] theory of recovery as valid under Georgia premises liability law is precisely the type of legal policy judgment we instructed in Robinson must be left to a jury to decide in light of all the attendant circumstances. It is one of the ‘routine’ issues of premises liability—’the negligence of the defendant’—that is “generally not susceptible of summary adjudication” unless the “plain, palpable, and undisputed” evidence requires otherwise. (citations omitted). At 446.

A hazard has been defined as “[a] danger or risk lurking in a situation which by chance or fortuity develops into an active agency of harm.” Gresham v. Bell’s Food Mkt, 244 Ga. App. 240, 241 (2000) (quoting Black’s Law Dictionary). Either actual or constructive knowledge of the hazard by a defendant will satisfy the first prong. Robinson, at 748. Here, there is both. Defendant admits traversing the stairway, including on the date in question. Defendant therefore has actual knowledge of the alleged hazard.

In analyzing an injured party’s knowledge of a hazard, “Robinson reminded all courts that the plaintiff’s lack of ordinary care for personal safety is generally not susceptible of summary adjudication and that only when the evidence is plain, palpable, and undisputed is summary judgment authorized.” Mac Intern.-Savannah Hotel, Inc. v. Hallman, 265 Ga. App. 727 (2004) (referencing Robinson at 748).

This quick three-part series on Georgia slip and fall law is just the tip of the iceberg. Please call us to discuss your specific situation.

Slip and Fall Personal Injuries Part Two

Robinson v. Kroger: Surviving Summary Judgment

Following up on our previous blog, the Georgia Supreme Court in 1997 changed the slip and fall landscape. The Court ruled that “an [injured party’s] failure to exercise ordinary care for personal safety is not established as a matter of law by the [injured party’s] admission that she did not look at the site on which she subsequently placed her foot”).

After Robinson, an injured party need only prove (1) that the landowner had actual or constructive knowledge of the hazard, and (2) that the injured party lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner.

Robinson is important because it shifts the focus from the injured party’s conduct to the landowner’s conduct. After Robinson, if the injured party shows the landowner knew about the hazard, then the burden shifts to the landowner to show the injury was caused by the injured party’s negligence (intentional disregard of a known risk or failure to exercise ordinary care for one’s personal safety). This makes it much easier for injured parties to survive summary judgment and get their cases in front of a jury.

Robinson remains good law today.

Slip and Fall Personal Injuries Part One

Previous Georgia Law

Under Georgia law, a landowner has a nondelegable statutory duty to keep its premises and approaches safe for a customer or guest (lawyers refer to such persons as “invitees”). OCGA § 51-3-1. Georgia law states: “Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”

Analysis of Georgia premises liability law begins with Alterman Foods v. Ligon, 240 Ga. 620 (1980). Alterman Foods established a two-prong test. To recover, injured parties had to show (1) the landowner had actual or constructive knowledge of hazard, and (2) the injured party was without knowledge of the hazard (or for some reason attributable to landowner was prevented from discovering the hazard). After Alterman and for the next 17 years, the conduct of the injured party was the focus. Few slip and fall cases injury cases survived summary judgment. A summary judgment is when a court rules as a matter of law for the landowner; this means the judge and not a jury decides the case.

Recognizing that the pendulum had swung too far in favor of landowners, the Georgia Supreme Court, in Robinson v. Kroger, found that “routine issues of premises liability, i.e., negligence, and the plaintiff’s lack of ordinary care for personal safety[,] are generally not susceptible of summary adjudication.” 268 Ga. 735,748 (1997) (“an invitee’s failure to exercise ordinary care for personal safety is not established as a matter of law by the invitee’s admission that she did not look at the site on which she subsequently placed her foot”).

In part two, we will discuss current current slip and fall law in Georgia.

Negligent Probation Supervision: Guidance from Peterson v. Reeves, 315 Ga.App. 370 (2012)

We are currently involved in a wrongful death case against a Georgia private probation company for negligent probation supervision. The probation company knew our client was a severe alcoholic, a type-1 diabetic, and had three DUI convictions. Despite this and contrary to the court’s order and Georgia law, the probation company failed to reasonably monitor our client for alcohol consumption. For example, our client violated court-ordered home alcohol monitoring testing 183 times, but this was never reported to the court. The probation company’s lenient supervision gave our client the opportunity to drink heavily for weeks on end, ultimately resulting in her death from a diabetic coma.

There are no Georgia appellate decisions directly on point. But, there is a similar case, at least with respect to claims for professional negligence. Peterson v. Reeves, 315 Ga.App. 370 (2012). In Peterson, a plaintiff sued her psychiatrist for failing to prevent injuries sustained when she attempted suicide. The psychiatrist moved for summary judgment, arguing he had no duty to involuntarily commit Plaintiff, who at the time of the suicide attempt was in an outpatient mental health care. The trial court denied the psychiatrist’s summary judgment motion. Judge McFadden, writing for the Georgia Court of Appeals, agreed with the trial court, finding that

whether [the psychiatrist] breached duties arising from the psychiatrist-patient relationship is an issue of fact . . . [t]he evidence would authorize a jury to find that [the psychiatrist] shares in the responsibility for a negligent failure to subject [the plaintiff] to a suicide or self-injury risk assessment, and adequate psychiatric evaluation, and consideration for hospitalization; that he shares in responsibility for the failure to stabilize [the plaintiff]; and that he was negligent in failing to be available for consultation, or to have another psychiatrist available . . . [a]nd the evidence would authorize a jury to find that those negligent omissions were a proximate cause of the defendant’s lack of control  over [the plaintiff] at the time of her attempted suicide as well as of the attempted suicide as well.

The underlying facts show that the psychiatrist was aware of plaintiff’s history of severe mental illness and high risk to attempt suicide, but, nonetheless, he allowed her to be discharged from a mental hospital without being subjected to a suicide assessment or considered for involuntary hospitalization. Two days later, plaintiff poured gasoline over herself and set herself on fire.

The psychiatrist argued that he was not liable because he never had control over the plaintiff. The court disagreed, finding that “control over the plaintiff” is not relevant because the psychiatrist had a duty to provide a minimum level of medical care to the plaintiff. The appellate court ruled that whether the psychiatrist’s care of the patient fell below that minimum level is up to a jury to decide.

The psychiatrist also argued that even if he has a duty, that duty does not include taking affirmative action to protect a patient. Again the court rejected that argument, finding the duty at issue is not strictly a duty to involuntarily commit the patient, but, rather, is “a duty to exercise the applicable degree of care and skill in the treatment” of the patient.

The take home is that in a doctor-patient or in a probation officer-probationee relationships, the doctor or probation officer have a duty to do their job with a minimum level of competency. What the minimum level of competency varies from situation to situation, and is a question to be resolved by a jury.